Mthembu v S (AR 497/08) [2009] ZAKZPHC 21 (22 May 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2009
>>
[2009] ZAKZPHC 21
|

|

Mthembu v S (AR 497/08) [2009] ZAKZPHC 21 (22 May 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
: PIETERMARITZBURG
APPEAL
CASE
NO.: AR 497/08
DCLD CASE NO.: CC259/06
In
the matter between :
FREDA
THEMBI MTHEMBU APPELLANT
(
Accused
in the Court
a quo
)
and
THE
STATE RESPONDENT
(State
in the Court
a quo
)
J U D G M E N T
DELIVERED
ON :
22 MAY
2009
PATEL J :
[1]
The
appellant in this matter, Mrs Freda Mthembu, with leave of the Court
a quo
appeals against her conviction on one count of murder for which she
was sentenced to 20 years imprisonment. I might in passing
mention
that the appellant was charged with a co-accused, Mr Linda Masuku
(“Masuku”) on the same count. At the close of the
State’s case
he was discharged in terms of Section 174 of the Criminal Procedure
Act 51 of 1977 (“the Act”).
[
2] By
way of introduction, I set out the background facts. The conviction
of the appellant arose from the killing of one Vusi Mathonsi

(“Mathonsi”) on 20 June 2005. He was, in his lifetime, the
brother of the appellant and resided with the appellant. The State

relied primarily on the evidence of Mr Thamsanqa Emmanuel Mthiyane
who was also known as Kati (hereinafter referred to as “Kati”).

It is not in dispute that it was Kati who shot and killed the
deceased on 20 June 2005. He pleaded guilty to the murder of
Mathonsi
and was sentenced to 18 years imprisonment. It is not in
dispute that Kati knew the appellant well. He had grown up in the
area
of appellant’s homestead, in KwaMashu, Durban and was on
friendly terms with her save that the extent of this friendship was
in dispute. The appellant is a teacher by profession but also
engaged in business operations including the running of a tuck-shop.

Kati was a member of the SANDF and stationed at Ladysmith.
[
3] It
was Kati’s evidence that he had been hired by the appellant to kill
her brother because her brother had become troublesome.
He had been
approached by the appellant “to remove” the deceased which Kati
understood to mean that he should kill the deceased.
They had
exchanged telephone numbers and he remembered the accused’s
cellular number to be 083 436 4941. I mention this because

circumstantial evidence was led by the State to bolster the evidence
of Kati who was not only a single witness but an accomplice.

According to Kati’s evidence the appellant not only wanted to have
the deceased killed because he was troublesome, but that
she would
also receive monies from insurance policies from which she would pay
Kati an amount of approximately R15 000 to kill
the deceased. On
Saturday, 18 June 2005, according to Kati’s testimony he telephoned
the appellant and informed her that he
was in need of money and was
prepared to kill the deceased and to that end did not repair to his
own home but instead sought refuge
in the home of Masuku. On Sunday,
19 June 2005, he and Masuku went in search of the deceased but could
not find him.
[
4] On
20 June 2005, and in the evening, Kati contacted the appellant to
ascertain the whereabouts of the deceased and was told by
her that he
was at the Mathonsi homestead and she will ensure that he is sent out
on an errand despite the lateness of the hour
and that he should
execute the evil deed whilst he was en-route doing the errand. Under
no circumstances was he to kill the deceased
in the Mathonsi
homestead. Kati accordingly followed the deceased and, at an
opportune moment, shot and killed him.
[
5] On
21 June 2005, he called the appellant telephonically and she appeared
to be mournful and seemed to be distressed. This, according
to Kati,
was a behaviour demanded by the occasion rather than any genuine
remorse. After the passage of a few days Kati telephoned
the accused
and asked for payment since he had completed his part of the bargain.
He was told to wait until the funeral was over.
A few days after
the funeral Kati once again telephoned the accused and pressed for
payment.
[
6] On
28 June 2005, Kati received a message from the appellant on his
girlfriend’s cellular phone informing him that a sum of
R7 530 had
been deposited into his bank account and he then immediately withdrew
a sum of R7 400. This is corroborated by Exhibit
B, the bank
statement of Kati. Kati withstood vigorous cross-examination and
explained the contradiction between the statement
filed in terms of
Section 112 of the Act at his trial wherein he stated that Masuku was
present when he shot the deceased. His
explanation was that a
mistake had perhaps crept through the process of interpretation. He
was adamant that Masuku was not present
when he killed the deceased.
He denied he had any relationship with Nkosingiphile Nyandeni
(“Nyandeni”) or that he had conspired
with the appellant’s
sister Bongiwe to falsely implicate her. Nyandeni, when she
testified, corroborated him on this essential
aspect.
[7] Nyandeni testified that on 20
June 2005 she was at the tuckshop at the Mathonsi homestead. She was
telephoned by the appellant
to enquire about any stock requirements
and at the same time she enquired about the whereabouts of the
deceased. She informed
him that he was out. Later that evening and
at about 18h20 the deceased came to the tuckshop and informed her
that he was telephonically
requested by the appellant to go to
Ntshingila’s homestead to get the telephone number of a nearby
school from Lindiwe Thokozile
Ntshingila (‘Ntshingila’) who was
also a school teacher. This evidence, albeit hearsay, was crucial to
the State’s case.
The appellant’s Counsel argued in the Court
below, as they did before us that this was hearsay and therefore
inadmissible.
[8] Ntshingila testified that the
deceased had come to her house on the evening of 20 June 2005,
requesting the telephone number
of the school where she taught.
Ntshingila’s further evidence was to the effect that it was open to
the appellant to have telephoned
her at home since the appellant had
both her telephone numbers. Her landline was working on the night of
20 June 2005. In fact,
the appellant’s husband had asked her to
summon the police on the landline, which she did. She denied the
appellant’s version
that the landline was either out of order or
engaged. Under cross-examination it was put to her that the
appellant did not know
the number of her cellphone. This she denied
emphatically. However, when this witness was recalled, the appellant
through her
Counsel did a
volte
face
and not only
did she admit that she had her cellular number but had made two
calls to Ntshingila on her cellular phone.
[9
] This
turnabout was no doubt occasioned by the evidence given by Hilda du
Plessis, a forensic data analyst employed by MTN Cellular
Network.
She testified on Exhibit E which showed the telephone calls made to
and from accused’s cellular phone, the duration
thereof, and the
caller identity number. Her evidence provided corroborative
circumstantial evidence to which I shall allude a
little later.
[1
0] The
State also tendered evidence of Mr Sibongisile Shabalala, a teller at
the First National Bank at Ladysmith, to confirm the
correctness of
the entries made on Exhibit B, Kati’s bank statement. He further
testified that when a deposit is made they did
not verify the
identity or the name of the depositor. It was common cause that the
name of the depositor on the slip was someone
other than the
appellant. For obvious reasons it would have been foolish of the
appellant to put her name on the deposit slip.
[11] The appellant in her defence
denied all the allegations against her. She attributed her
implication in the murder to an alleged
feud between herself and her
sister, Bongiwe, over the ownership of the Mathonsi homestead. It
was not only Kati who was drawn
into this conspiracy to falsely
implicate her but all the State witnesses who had testified, in
particular Nyandeni. The appellant
insisted that she had received a
phone call from Kati but this was merely for her to act as
intermediary to resolve a lover’s
quarrel between Kati and
Nyandeni. To that end the appellant in her evidence in-chief
admitted to receiving just one call but
was constrained in
cross-examination to concede that she had received three calls from
Kati during the relevant period.
[12] Under cross-examination, she
further admitted that not only had she known Kati well but that she
had more contact with Kati
than that contended for in her evidence
in-chief. She also recanted on her earlier denial of a customary
ceremony being held
at her homestead in May 2005, a fact which was
corroborated by both Nyandeni and Ntshingila, and both she and her
witness said
that this had happened in February 2005 and not in May.
Apropos, the proceeds of the insurance policy, the appellant
initially
testified that there were only two policies on the life of
the deceased amounting to no more than R25 000. Under
cross-examination
she admitted that she would receive the sum of R45
000 from the insurance policies, despite deposing to an affidavit in
her bail
hearing wherein she admitted to receiving R50 000 from the
various policies on the life of the deceased.
[13] I do not propose going through
the other contradictions in her evidence save to emphasise that
according to her testimony she
was nowhere near the Prospecton branch
of First National Bank on 28 June 2005 when a deposit was made into
the account of Kati.
When confronted with the fact that her
cellphone recorded a call being received on her cellphone in the
Prospecton area on the
28 June 2005, she sought refuge in the fact
that one of the young persons in her family, namely Sizwe, was using
her car at the
relevant time and maybe her cellphone had been left in
her car.
[14] However, when Sizwe testified,
he was unable to confirm that he had the appellant’s motor vehicle
on the 28 June 2005. He
did not see any cellphone in the car and if
indeed the cellphone had rung, he would not have engaged in a lengthy
conversation
as is recorded in Exhibit E. He could also not recall
receiving a telephone call from the Kwa Mashu Police Station. The
probabilities
are overwhelming that the appellant herself received
this call on the 28 June 2005 since it is common cause that she
attended the
Kwa Mashu police station on the 29 June 2005 to make a
statement. Exhibit E provides evidence of both these calls being
received
on the appellant’s cellphone.
[15] It is a trite proposition of our
law that the credibility findings and findings of fact of the Trial
Court cannot be disturbed
unless the record shows them to be clearly
wrong. Counsel for the respondent urged us to follow the approach
commended in
Moshephi
& Others v R (1980 – 1984) LAC at 59 F-H
which was approved in
S
v Hadebe & Others
1998 (1) SACR 422
(SCA)
,
namely :
“
The question for determination
is whether, in the light of all the evidence adduced at the trial,
the guilt of the appellants was
established beyond reasonable doubt.
The breaking down of a body of evidence into its component parts is
obviously a useful aid
to a proper understanding and evaluation of
it. But, in doing so,
one
must guard against a tendency to focus too intently upon the separate
and individual part of what is, after all, a mosaic of
proof. Doubts
about one aspect of the evidence led in a trial may arise when that
aspect is viewed in isolation. Those doubts
may be set at rest when
it is evaluated again together with all the other available evidence.
That is not to say that a broad
and indulgent approach is
appropriate when evaluating evidence. Far from it. There is no
substitute for a detailed and critical
examination of each and every
component in a body of evidence. But, once that has been done, it is
necessary to step back a pace
and consider the mosaic as a whole. If
that is not done, one may fail to see the wood for the trees.”
[16]
Corroboration
in some material respect is an important safeguard in evaluating and
accepting the evidence of an accomplice witness
especially if he is a
single witness. Such corroboration does not have to be direct
evidence. Circumstantial evidence connecting
the appellant with the
crime is sufficient. The fact that the appellant was shown to be a
lying witness, is also a safeguard which
reduces the risk of a wrong
conviction.
[17] In my view the court
a
quo
correctly
relied on the evidence of Kati and exercised the necessary caution in
evaluating his evidence. Kati had already pleaded
guilty to the
murder and was sentenced to 18 years imprisonment some 18 months
before the appellant’s trial commenced. He had
nothing to gain by
testifying against the appellant. Be that as it may, the important
aspects of Kati’s evidence were corroborated
by Nyandeni and
Ntshingila. Kati had testified that he would at times contact the
appellant from a pay phone at her tuckshop and,
on the instruction of
the appellant, would not pay for such calls. Nyandeni confirmed this
as well as the fact that appellant
was aware of this. She said
further that Kati would telephone the appellant to let her know that
he was at the tuckshop and the
appellant would call him back.
[18] Nyandeni’s evidence was that
on the day the deceased was killed, the appellant had phoned her in
the afternoon to enquire
if the deceased was at home. Nyandeni
confirmed that he was and the appellant said she would telephone him
at the house. Some
time later that evening, the appellant requested
Nyandeni to unlock the gate and let him out so that he could go to
the Ntshingila’s
house to get a telephone number for the appellant.
That was the last she saw of him. This aspect of Nyandeni’s
evidence corroborates
Kati’s evidence that the appellant had
undertaken to get the deceased out of the house so that Kati could
kill him. The appellant
herself confirmed that she telephoned the
deceased and requested him to go to Ntshingila’s house to obtain
the telephone number,
but that she had asked him to go the following
day. This was gainsaid by Nyandeni’s evidence, albeit it hearsay.
According
to Nyandeni, the deceased had informed her that he was
asked by the appellant to go to Ntshingila’s homestead that very
night,
20 June 2005. In my view, the court
a
quo
correctly
admitted this evidence. It is unfortunate that the court
a
quo
made reference
to one of the old exclusions to the common law rule against hearsay,
namely, a dying declaration. In any event it
appears from the record
that the learned Judge considered the provisions of the statutory
hearsay rule and made his finding in
accordance with the rule. Not
only could this evidence be admitted but, contrary to what the
learned Judge said, despite its prejudice
to the appellant it could
be relied upon together with the other inherent improbabilities in
rejecting the version proferred by
the appellant, since its admission
is in the interest of justice and far outweighs the prejudice to the
appellant.
[19] Kati’s evidence is
corroborated by independent evidence, namely, bank records regarding
the deposit of R7 530 into his bank
account, as well as the
withdrawal of R7 400. This deposit was made at the Prospecton
branch of First National Bank on 28 June
2005. The appellant’s
cellphone records indicate that at 10:40am on the 28
th
June 2005 the appellant’s cellphone was drawing a signal at
Prospecton. Whether one regards this as a “happenstance”, as

Counsel for the appellant will have us believe, or a circumstance, it
certainly is material circumstantial evidence which called
for an
answer. No plausible explanation was forthcoming from the appellant.
[20] From Sizwe’s evidence taken
together with the explanation proferred by the appellant, the court
a
quo
was correct in
rejecting her version as to both her whereabouts and that of the
phone on the 28 June 2005, especially since Sizwe
could not come to
her rescue. The only inference that one can reasonably draw is that
the appellant was trying to distance herself
from being anywhere near
Prospecton when the deposit was made.
[21] Her lack of candour apropos not
having Ntshingila’s cellphone number and later recanting that she
had not saved it on her
phone, is again indicative of a desire on the
part of the appellant to fortify the reason for sending the deceased
on an errand
when the same was not necessary. The only logical
inference one can draw is an inference which is consistent with the
evidence
of Kati, namely, that the appellant was putting the deceased
in a situation in which he could be killed by Kati. I am therefore

in agreement with the submission made by Counsel for the respondent
that Ntshingila’s cellphone number was significant as the
appellant
would have no plausible reason to send the deceased to her homestead,
as she could have called Ntshingila on her cellphone
to get the
telephone number of the school, if, as the appellant would have the
court believe, at the material time Ntshingila’s
landline was not
working.
[22] It is equally illogical that the
appellant would have gone to all the lengths she did to determine the
whereabouts of the deceased
on the 20
th
June 2005 if she only wanted him to obtain the telephone number from
Ntshingila the following morning, that is to say on the 21
June 2005.
The only logical explanation is that provided by Kati.
[23] Perhaps the court
a
quo
erred in
stating that “we did not find any aspect of Kati’s evidence
unsatisfactory”. As alluded to earlier, there was
certainly a
contradiction between Kati’s evidence in the court
a
quo
and his Section
112 statement regarding the presence of the appellant’s co-accused
when Kati shot the deceased. When cross-examined
about this
discrepancy he was emphatic that he was alone. He further explained
that the interpreter who helped his Counsel when
the Section 112
statement was canvassed must have made a mistake. However, Kati’s
statement made to the police, which was handed
in as Exhibit D in the
court
a quo
clearly shows that Kati was alone when he shot the deceased.
However, this discrepancy must be considered in the totality of the

evidence of Kati. It is trite that if a witness was untruthful in
respect of one aspect of his evidence, it does not render his
entire
evidence unsatisfactory. A court is entitled to accept those parts of
Kati’s evidence which is corroborated by other witnesses
or some
other circumstantial evidence. Hence the court below, in my view, did
not err despite this shortcoming in coming to the
conclusion that
Kati’s evidence was reliable.
[24] Similar criticism can be
levelled at the court’s finding that Exhibit E, as authenticated by
Du Plessis, confirms the telephone
calls to and from Kati to the
accused and vice versa, and corroborates Kati’s version as to the
appellant’s instructions to
the deceased on 20 June 2005. Kati
testified that he called the appellant on 21 June 2005 on her
cellphone from a landline number
in Ladysmith. If one looks at
Exhibit E there is no reflection that the appellant received any call
from a landline number in
Ladysmith since it is not in dispute that
the Ladysmith dialling code is 036. However, when appellant
testified it became common
cause that Kati did call the appellant on
21 June 2005. Further, Kati testified that the SMS on 28 June 2005
was sent to his Indian
girlfriend’s cellphone and the said SMS was
in isiZulu. In any event, according to Kati’s evidence as
corroborated by Nyandeni,
the communication between Kati and
appellant was not confined to cellphones only.
[25] I am satisfied that the court
a
quo
properly
cautioned itself that Kati was a single accomplice witness. However,
Kati’s evidence was carefully scrutinized and
materially
corroborated by circumstantial evidence and the evidence of the
witnesses set out above. Once the court applied the
cautionary rule
it is of no great moment that the court may have omitted to say in
its judgment that Kati was also a single witness
in respect of the
killing. It is a well established proposition of our law that if a
court applies the cautionary rule, the test
remains the same
irrespective of whether there is more than one reason to apply the
cautionary rule.
[26] The appeal against conviction is accordingly
dismissed.
PATEL
J
I
agree
STEYN
J
I
agree
NAIDOO
AJ
D
ATE
OF HEARING : FRIDAY, 17 APRIL 2009
DATE
OF JUDGMENT :
FRIDAY, 22 MAY 2009
COUNSEL
FOR APPELLANT: ADV. K J KEMP S.C.
INSTRUCTED
BY : HULLEY & ASSOCIATES
APPELLANT’S
ATTORNEYS
SUITE 17, CORPORATE PARK
11
SINEMBE CRESCENT
LA
LUCIA RIDGE
DURBAN
(REF.: Collins/sh/M494)
(TEL:
031 – 5847594)
COUNSEL
FOR RESPONDENT:
ADV. B F MANYATHI
INSTRUCTED BY :
DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT’S ATTORNEYS
12
TH
FLOOR
SOUTHERN LIFE BUILDING
88 FIELD STREET
DURBAN
(REF.: Mr Manyathi)
(TEL;
031 – 3345114)